United States v. Romano, No. 2

CourtUnited States Supreme Court
Writing for the CourtWHITE
Citation382 U.S. 136,15 L.Ed.2d 210,86 S.Ct. 279
Decision Date22 November 1965
Docket NumberNo. 2
PartiesUNITED STATES, Petitioner, v. Frank ROMANO et al

382 U.S. 136
86 S.Ct. 279
15 L.Ed.2d 210
UNITED STATES, Petitioner,

v.

Frank ROMANO et al.

No. 2.
Argued Oct. 14, 1965.
Decided Nov. 22, 1965.

Louis F. Claiborne, Washington, D.C., for petitioner.

W. Paul Flynn, New Haven, Conn., for respondents.

Page 137

Mr. Justice WHITE delivered the opinion of the Court.

Federal officers, armed with a search warrant, entered one of the buildings in an industrial complex in Jewett City, Connecticut. There they found respondents standing a few feet from an operating still. Respondents1 were indicted on three counts: Count 1 charged possession, custody and control of an illegal still in violation of 26 U.S.C. § 5601(a)(1);2 Count 2, the illegal production of distilled spirits in violation of 26 U.S.C. § 5601(a)(8);3 and Count 3, a conspiracy to produce distilled spirits. Both respondents were convicted on all three counts, both were fined on Count 1 and both sentenced to concurrent terms of imprisonment on each of the three counts.

The Court of Appeals affirmed the convictions on Count 3. 330 F.2d 566. It reversed the convictions on Counts 1 and 2 because the trial court in instructing the jury read verbatim provisions of § 5601(b)(1)4 and

Page 138

s 5601(b)(4),5 which provide in part that the presence of the defendant at the site of an illegal still 'shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury * * *.' This instruction and the statutory inference which it embodied were held by the Court of Appeals to violate the Due Process Clause of the Fifth Amendment. We granted certiorari to consider this constitutional issue. 380 U.S. 941, 85 S.Ct. 1020, 13 L.Ed.2d 961.

We agree as to the invalidity of § 5601(b)(1) and the reversal of the convictions on Count 1. It is unnecessary, however, to consider the validity of § 5601(b)(4) and the convictions on Count 2 since the sentences on that count were concurrent with the sentences, not here challenged, which were imposed on Count 3. United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 756, 13 L.Ed.2d 658; Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692.

If we were reviewing only the sufficiency of the evidence to support the verdict on Count 1, that conviction would be sustained. There was, as the Court of Appeals recognized, ample evidence in addition to presence at the still to support the charge of possession of an illegal still. But here, in addition to a standard instruction on reasonable doubt, the jury was told that the defendants' presence at the still 'shall be deemed sufficient evidence to authorize conviction.' This latter instruction may have been given considerable weight by the jury; the jury may have disbelieved or disregarded the other evidence of possession and convicted these defendants on

Page 139

the evidence of presence alone. We thus agree with the Court of Appeals that the validity of the statutory inference in the disputed instruction must be faced and decided.

The test to be applied to the kind of statutory inference involved in this criminal case is not in dispute. In Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, the Court, relying on a line of cases dating from 1910,6 reaffirmed the limits which the Fifth and Fourteenth Amendments place 'upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.' Id., at 467, 63 S.Ct., at 1245. Such a legislative determination would not be sustained if there was 'no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. * * * (W)here the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.' Id., at 467—468, 63 S.Ct., at 1245. Judged by this standard, the statutory presumption in issue there was found constitutionally infirm.

Just last Term, in United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658, the Court passed upon the validity of a companion section to § 5601(b)(1) of the Internal Revenue Code. The constitutionality of the legislation was held to depend upon the 'rationality of the connection 'between the facts proved and the ultimate fact presumed." 380 U.S., at 66, 85 S.Ct., at 757. Tested by this rule, the Court sustained the provision of 26 U.S.C. § 5601(b)(2) declaring pres-

Page 140

ence at a still to be sufficient evidence to authorize conviction under 26 U.S.C. § 5601(a)(4) for carrying on the business of the distillery without giving the required bond. Noting that almost anyone at the site of a secret still could reasonably be said to be carrying on the business or aiding and abetting it and that Congress had accorded the evidence of presence only its 'natural probative force,' the Court sustained the presumption.

This case is markedly different from Gainey, supra. Congress has chosen in the relevant provisions of the Internal Revenue Code to focus upon various phases and aspects of the distilling business and to make each of them a separate crime. Count 1 of this indictment charges 'possession, custody and * * * control' of an illegal still as a separate, distinct offense. Section 5601(a)(1) obviously has a much narrower coverage than has § 5601(a)(4) with its sweeping prohibition of carrying on a distilling business.

In Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818, the Court squarely held, and the United States conceded, that presence alone was insufficient evidence to convict of the specific offense proscribed by § 5601(a)(1), absent some evidence that the defendant engaged in conduct directly related to the crime of possession, custody or control. That offense was confined to those who had 'custody or possession' of the still or acted in some 'other capacity calculated to facilitate the custody or possession, such as, for illustration, service as a caretaker, watchman, lookout, or in some other capacity.' Id., at 164, 67 S.Ct., at 648. This requirement was not satisfied in the Bozza case either by the evidence showing participation in the distilling operations or by the fact that the defendant helped to carry the finished product to delivery vehicles. These facts, and certainly mere presence at the still, were insufficient proof that 'petitioner ever exercised, or aided the exercise of, any control over the distillery.' Ibid.

Page 141

Presence at an operating still is sufficient evidence to prove the charge of 'carrying on' because anyone present...

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299 practice notes
  • United States v. Thompson, No. 18004.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 7, 1970
    ...which the defendant relies, Tot v. United States, 1943, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, and United States v. Romano, 1965, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 are thus distinguishable on their facts and under the statutes there involved. No useful purpose would be served ......
  • Owens v. Roberts, No. 73-423-Civ-J-S.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 17, 1974
    ...the ultimate fact to be established. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L. Ed.2d 57 (1969); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L. Ed.2d 210 (1965); Adler v. Board of Education, supra; Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1......
  • People v. Harrison, Cr. 12656
    • United States
    • California Court of Appeals
    • January 20, 1984
    ...in criminal cases. (See, e.g., United States v. Gainey (1965) 380 U.S. 63 [85 S.Ct. 754, 13 L.Ed.2d 658]; United States v. Romano (1965) 382 U.S. 136 [86 S.Ct. 279, 15 L.Ed.2d 210]; Leary v. United States (1969) 395 U.S. 6 [89 S.Ct. 1532, 23 L.Ed.2d 57]; Turner v. United States (1970) 396 U......
  • Miranda v. State, No. 759
    • United States
    • United States Supreme Court
    • October 10, 1966
    ...have no rational foundation. Compare Tot v. United States, 319 U.S. 463, 466, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519; United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210. A fortiori that would be true of the extension of the rule to exculpatory statements, which the Court effect......
  • Request a trial to view additional results
299 cases
  • United States v. Thompson, No. 18004.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 7, 1970
    ...which the defendant relies, Tot v. United States, 1943, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, and United States v. Romano, 1965, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 are thus distinguishable on their facts and under the statutes there involved. No useful purpose would be served ......
  • Owens v. Roberts, No. 73-423-Civ-J-S.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 17, 1974
    ...the ultimate fact to be established. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L. Ed.2d 57 (1969); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L. Ed.2d 210 (1965); Adler v. Board of Education, supra; Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1......
  • People v. Harrison, Cr. 12656
    • United States
    • California Court of Appeals
    • January 20, 1984
    ...in criminal cases. (See, e.g., United States v. Gainey (1965) 380 U.S. 63 [85 S.Ct. 754, 13 L.Ed.2d 658]; United States v. Romano (1965) 382 U.S. 136 [86 S.Ct. 279, 15 L.Ed.2d 210]; Leary v. United States (1969) 395 U.S. 6 [89 S.Ct. 1532, 23 L.Ed.2d 57]; Turner v. United States (1970) 396 U......
  • Miranda v. State, No. 759
    • United States
    • United States Supreme Court
    • October 10, 1966
    ...have no rational foundation. Compare Tot v. United States, 319 U.S. 463, 466, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519; United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210. A fortiori that would be true of the extension of the rule to exculpatory statements, which the Court effect......
  • Request a trial to view additional results

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